In the Supreme Court of the United States

Transcription

1 NO In the Supreme Court of the United States LINDA ASH and ABBIE JEWSOME, v Petitioners, ANDERSON MERCHANDISERS, LLC; WEST AM, LLC; and ANCONNECT, LLC; Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI WESLEY E. STOCKARD COUNSEL OF RECORD BRADLEY E. STRAWN LITTLER MENDELSON, P.C PEACHTREE ROAD, N.E. SUITE 1500 ATLANTA, GA (404) WSTOCKARD@LITTLER.COM NOVEMBER 18, 2015 COUNSEL FOR RESPONDENTS SUPREME COURT PRESS (888) BOSTON, MASSACHUSETTS

2 i QUESTIONS PRESENTED 1. Whether this Court should review the Court of Appeals opinion affirming that the District Court acted within its discretion to deny Petitioners postjudgment motion to vacate the judgment and permit post-judgment amendment of the Complaint when there is no disagreement among the Circuits that Rule 15 considerations continue to apply postjudgment but should not be construed so as to render Rules 59 and 60 meaningless. 2. Whether this Court should review the Court of Appeals opinion affirming that the District Court acted within its discretion by denying Petitioners post-judgment motion to vacate the judgment and to permit post-judgment amendment of the Complaint where Petitioners: (a) admittedly did not plead pertinent facts in their possession; (b) were presented with a motion to dismiss highlighting the absence of those very facts and the resulting deficiencies in the Complaint; (c) had ample opportunity to submit an amended complaint as matter of right before the motion to dismiss was granted; (d) were informed in the reply brief in support of the motion that they had not properly requested leave to amend; (e) could have sought leave to amend after the motion to dismiss was granted but before the District Court entered judgment; (f) but chose instead to stand on their pleadings and offered no excuse for their delay in both asserting facts admittedly known to them at the time the case was filed and not seeking amendment until after judgment was entered.

3 ii RULE 29(6) CORPORATE DISCLOSURE STATEMENT Respondents Anderson Merchandisers, LLC and ANCONNECT, LLC each have two members, Anderson Media Corp and First Media Capital Corporation. Respondent West AM, LLC s members are individuals, not other business entities. There is no parent or publicly traded company owning more than a 10% ownership interest in any Respondent.

4 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i RULE 29(6) CORPORATE DISCLOSURE STATEMENT... ii TABLE OF AUTHORITIES... v FEDERAL RULES INVOLVED... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 5 REASONS FOR DENYING THE PETITION I. THE CIRCUIT COURTS ARE NOT DIVIDED OVER THE STANDARD APPLICABLE TO POST- JUDGMENT REQUESTS FOR LEAVE TO AMEND.. 11 A. The Eighth Circuit s Decision Is Correct, Consistent with This Court s Guidance in Foman, and Consistent with Rules 15, 59 and B. The Second, Fourth, Fifth, Seventh and Eleventh Circuits Do Not Ignore Rule 59 and 60 Considerations When Evaluating a Post-Judgment Request to Amend C. The Cited Decisions from the First, Sixth and Ninth Circuits are Consistent with Foman and Decisions from the Other Circuits D. The D.C. Circuit Decisions Are Not Inconsistent... 30

5 iv TABLE OF CONTENTS Continued Page II. THE COURTS OF APPEALS ARE NOT DIVIDED OVER HOW TO MEASURE AND CONSIDER UNDUE DELAY III. ASH AND JEWSOME S PETITION SHOULD BE DENIED BECAUSE THIS CASE WAS CORRECTLY DECIDED BELOW AND COMPLIES WITH THIS COURT S FOMAN DECISION CONCLUSION... 38

6 v TABLE OF AUTHORITIES TABLE OF AUTHORITIES CASES Page ACA Financial Guaranty Corp. v. Advest, 512 F.3d 46 (1st Cir. 2008) Ahmed v. Dragovich, 297 F.3d 201 (3d Cir. 2002) Aikens v. Ingram, 652 F.3d 496 (4th Cir. 2011) Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517 (1991) Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)... 5 Bldg. Indus. Ass n of Superior California v. Norton, 247 F.3d 1241 (D.C. Cir. 2001) Brink v. Continental Ins. Co., 787 F.3d 1120 (D.C. Cir. 2015) Clark v. United States, 764 F.3d 653 (6th Cir. 2014) Fannon v. Guidant Corp., 583 F.3d 995 (7th Cir. 2009)... 22, 23, 24 FDIC v. Meyer, 781 F.2d 1260 (7th Cir. 1986) Figgie Int l, Inc. v. Miller, 966 F.2d 1178 (7th Cir. 1992)... 18, 19, 20

7 vi TABLE OF AUTHORITIES Continued Page Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) Foman v. Davis, 371 U.S. 178 (1962)... passim Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) In re Genzyme Corp. Securities Litigation, 754 F.3d 31 (1st Cir. 2014)... 28, 29 Jacobs v. Tempur-Pedic Int l, Inc., 626 F.3d 1327 (11th Cir. 2010) James v. Watt, 716 F.2d 71 (1st Cir. 1983)... 15, 34, 36 Jang v. Boston Scientific Scimed, Inc., 729 F.3d 357 (3d Cir. 2013) Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) Leisure Caviar, LLC v. U. S. Fish & Wildlife Serv., 616 F.3d 612 (6th Cir. 2010). 14, 17, 20, 29 Lindauer v. Rogers, 91 F.3d 1355 (9th Cir. 1996) Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) Mayfield v. Nat l Ass n for Stock Car Auto Racing, Inc., 674 F.3d 369 (4th Cir. 2012).. 17, 25 Morse v. McWhorter, 290 F.3d 795 (6th Cir. 2002)... 32, 33

8 vii TABLE OF AUTHORITIES Continued Page Rosenzweig v. Azurix Corp., 332 F.3d 854 (5th Cir. 2003) Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015)... 14, 23, 24, 33 S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606 (5th Cir. 1993) Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003 (8th Cir. 2015) Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084 (10th Cir. 2005) Thomas v. Town of Davie, 847 F.2d 771 (11th Cir. 1988) U.S. ex rel. Roop v. Hypoguard U.S.A., Inc., 559 F.3d 818 (8th Cir. 2009)... 16, 22 U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354 (5th Cir. 2014) Vielma v. Eureka Co., 218 F.3d 458 (5th Cir. 2000)... 17, 26 Weeks v. Bayer, 246 F.3d 1231 (9th Cir. 2001)... 29, 30 Williams v. Citigroup, Inc., 659 F.3d 208 (2d Cir. 2011)... passim

9 viii TABLE OF AUTHORITIES Continued Page JUDICIAL RULES Federal Rule of Civil Procedure 12(b)(6)... 5, 28 Federal Rule of Civil Procedure passim Federal Rule of Civil Procedure passim Federal Rule of Civil Procedure passim Supreme Court Rule OTHER AUTHORITIES MOORE S FEDERAL PRACTICE Civil

10 1 FEDERAL RULES INVOLVED Federal Rule of Civil Procedure 15(a) (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party s written consent or the court s leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. Federal Rule of Civil Procedure 59(e) (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.

11 2 Federal Rule of Civil Procedure 60(b) (b) Grounds for Relief from a Final Judgment, Order or Proceeding. On motion and just terms, the court may relieve a part or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party); (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. INTRODUCTION Respondents Anderson Merchandisers, LLC, ANCONNECT, LLC, and West AM, LLC respectfully request that this Court deny the petition for a writ of certiorari filed by Petitioners Linda Ash and Abbie

12 3 Jewsome, seeking review of the decision of the United States Court of Appeals for the Eighth Circuit entered in this case on August 21, Here, the Eighth Circuit applied the considerations of undue delay and respect for finality of judgments that all other Circuit Courts of Appeal have applied in addressing similar post-judgment motions. The Court of Appeals decision was based upon an appropriate application of well-settled legal principles regarding the circumstances under which a district court acts within its discretion to deny a post-judgment motion to amend under Rules 15, 59 and 60 of the Federal Rules of Civil Procedure. Petitioners assert that the standard applied in the Court of Appeals opinion ignored Rule 15(a)(2) and the precedent established in Foman v. Davis, 371 U.S. 178 (1962). In their attempt to satisfy the requirements of Supreme Court Rule 10, Petitioners argue that there is a deep conflict among and within the circuits concerning the standard that governs a district court s discretion to deny a motion to amend filed after dismissal and entry of judgment. 1 But in fact, there is no such conflict, and no circuit holds that the considerations for reopening a case established by Rules 59 and 60 are to be disregarded simply because the movant seeks to amend a complaint post-judgment. To hold otherwise would render the legitimate interest in the finality of judgments embodied by Rules 59 and 60 meaningless. Instead, the circuit courts uniformly account for the different policies behind Rule 15 and 1 See Petitioners Ash and Jewsome s Petition for Writ of Certiorari (hereinafter Pet. ) at 1 2, 9 10.

13 4 Rules 59 and 60, as well as the presence of factors such as undue delay, bad faith, dilatory motive, and futility, when reviewing a decision to deny postjudgment leave to amend. But, even assuming, arguendo, that the circuit courts are divided over the permissible range of discretion afforded to a district court considering a post-judgment motion for leave to amend, the undisputed facts establish that this case is not the proper vehicle to resolve such conflicts. In the face of Respondents motion to dismiss, Petitioners chose not to amend their Complaint at any time during the forty-seven days the motion was pending in the District Court, despite possessing the very facts proffered in their proposed amended complaint at the time they filed their original Complaint. Petitioners likewise never sought leave to amend their Complaint during the seven day period between when the District Court granted the motion to dismiss and when judgment for Respondents was entered. Instead, it was not until nine days after the District Court dismissed the Complaint and two days after judgment was entered when Petitioners finally filed a motion to set aside the judgment under Rules 59 and 60 and proffered a proposed amended complaint. And, when doing so, Petitioners offered no explanation for failing to amend their Complaint prior to the entry of judgment, nor did they explain in any way why they did not include facts previously known to them in their original Complaint. Thus, under any standard articulated by the circuit courts, and consistent with Foman, the District Court acted within its sound discretion when it denied Petitioners post-judgment leave to amend. Accordingly, this case

14 5 does not provide the proper means through which to resolve any asserted conflicts among the circuits on these issues. STATEMENT OF THE CASE On April 21, 2014, Petitioners commenced this FLSA collective action against Respondents in the U.S. District Court for the Western District of Missouri, seeking relief for alleged violations of the overtime provisions of the FLSA, on behalf of themselves and others similarly situated. (Res.App.1a). Petitioners Complaint alleged, among other things, that Respondents shared interrelated operations, centralized control of labor relations, common management and common ownership and/or financial control and therefore were part of an integrated enterprise and, as such, were Plaintiffs employer, but it did not include any facts to support those conclusory allegations or to make plausible that an employment relationship actually existed between Petitioners and any of the Respondents. (Res.App.1a). On May 23, 2014, Respondents moved to dismiss the Complaint pursuant to Rule 12(b)(6), arguing that the Complaint failed to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, as interpreted by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (Res.App.14a, 17a). Specifically, Respondents argued that the Complaint failed to plead: (1) facts establishing a plausible

15 6 employment relationship between Petitioners and any Respondent (and therefore failed to adequately plead standing); (2) a plausible FLSA overtime violation; and (3) a proper collective action. (Res.App. 14a, 17a). After Respondents filed their motion to dismiss, Petitioners could have amended their Complaint as a matter of right pursuant to Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, but they chose instead to defend the Complaint as sufficiently pled. (Res.App.34a). In a sentence at the bottom of the last page of their brief in opposition to Respondents motion to dismiss, Petitioners wrote: [s]hould the Court believe that Plaintiffs Complaint is somehow deficient, the appropriate remedy is not to dismiss but to allow Plaintiffs leave to file an amended complaint. (Res.App.34a). Respondents reply brief in support of their motion to dismiss, filed on June 23, 2014, reiterated the reasons why the Complaint had not plausibly alleged an employment relationship or a FLSA violation. (Res.App.55a). The reply brief also notified Petitioners that they had not properly requested leave to amend their Complaint by citing to pertinent caselaw establishing that a one-sentence statement about amendment in a motion response did not amount to a proper request for leave to amend. (Res.App.55a). Despite Respondents arguments and citations to established law, including caselaw pointing out that Petitioners had not properly requested leave to amend, Petitioners chose not to seek the Court s leave to file an amended complaint.

16 7 On July 2, 2014, forty days after Respondents motion to dismiss was filed and nine days after Respondents filed their reply pointing out that Petitioners had not properly requested leave to amend their complaint, the District Court issued an order granting Respondents motion. (Pet.App.12a- 19a). The District Court held that the Complaint did not contain any well-pled facts establishing an employer-employee relationship between any Petitioner and any Respondent, nor did it include any well-pled facts supporting a theory of joint employment. (Pet.App.16a). The District Court also held that Petitioners had not adequately pled a FLSA violation. (Pet.App.17a). Finally, the District Court noted that Petitioners had not moved for leave to amend and did not file a proposed amendment. (Pet.App.18a). Instead, Petitioners chose to stand on and defend [their] original complaint. (Pet.App.19a). Consequently, the District Court ordered dismissal of the Complaint without inviting Petitioners to file an amendment. (Pet.App.19a). Importantly, the District Court did not enter judgment against Petitioners at the time it entered its order dismissing their Complaint. Rather, the District Court waited seven days, until July 9, 2014, to enter judgment in Respondents favor. (Res.App.71a). During this seven-day period, Petitioners took no steps to amend their Complaint. Two days after the Court entered judgment in Respondents favor, on July 11, 2014, Petitioners filed a motion under Rules 59(e) and 60(b) asking the District Court to grant the extraordinary remedy of vacating the judgment, re-opening the case, and

17 8 allowing them to file an amended complaint even though they had numerous opportunities prior to the entry of judgment, and even after their Complaint was dismissed, to amend the Complaint. 2 (Res.App.73a). It was only then forty-nine days after Respondents filed their motion to dismiss which identified the very pleading deficiencies on which the District Court based its dismissal, and eighteen days after Respondents filed their reply brief notifying Petitioners that they had not properly requested leave to amend their complaint that Petitioners submitted a proposed amended complaint. (Res.App. 73a, 75a). Notably, all of the new facts that Petitioners included in the proposed amended complaint came from sources such as paychecks, W-2s, handbooks, uniform logos and Petitioners own memories that Petitioners possessed at the time they filed the initial Complaint. (See Res.App. 75a, 161a). They could have included those facts in their initial Complaint, but simply chose not to do so. On September 11, 2014, the District Court denied Petitioners motion to vacate and set aside its judgment and allow post-judgment leave to amend, 2 In their Statement of the Case, Petitioners write that the district court granted a motion to dismiss for insufficient pleading and denied petitioners subsequent motion for leave to amend the complaint to correct the deficiency. (Pet.3). They also at points characterize their post-judgment motion as one for reconsideration. (Pet.6-8, 10). This phrasing paints an inaccurate picture of the underlying record. Petitioners did not file a motion for leave to amend their complaint after dismissal, nor did they file a reconsideration motion. Rather, Petitioners filed a motion to vacate and set aside a judgment after judgment against them was entered.

18 9 holding that Petitioners failed to seek leave to amend or to submit a proposed amended complaint at any point before judgment was entered, despite having more than ample opportunity to do so. (Pet.App.20a). In reaching its conclusion, the District Court relied on well-established Eighth Circuit precedent, as well as Rule of Civil Procedure 15(a)(2), 59(e), and 60(b). (Pet.App.20a). Petitioners appealed the District Court s dismissal and denial of their motion for postjudgment leave to amend to the Eighth Circuit Court of Appeals. In their brief, Petitioners acknowledged that they were in possession of facts regarding their purported employment relationship with Respondents at the time they filed suit but chose instead to assert conclusory allegations in the Complaint. (Res.App. 157a). Notwithstanding Petitioners failure to take advantage of the opportunities to amend before judgment was entered against them, Petitioners argued to the Court of Appeals that the District Court had abused its discretion in denying their postjudgment request to amend. Specifically, Petitioners stated that the District Court erred because their claims should be addressed on the merits as required under Fed. R. Civ. P. 15(a)(2) and the First Amended Complaint addressed the pleading deficiencies found by the court. (Res.App.168a-169a). Petitioners offered no explanation for their delay in failing to seek leave to amend during the pendency of the motion to dismiss or between the time when the motion was granted and when judgment was entered. (See generally Res.App.157a, 265a).

19 10 The Court of Appeals was not persuaded, holding: Ash and Jewsome appear to conflate their right to request post judgment leave to amend with their right to receive leave to amend.... Ash and Jewsome essentially argue that because it is preferable that claims brought in federal court be tested on their merits, the district court s denial of post-judgment leave to amend which did prevent their claim from proceeding on the merits was almost by definition an abuse of discretion.... Asserting simply that their claim should be tested on the merits, Ash and Jewsome offer nothing to explain why their litigation decisions did not amount to undue delay, or why the resulting delay was otherwise excusable. (Pet.App.9a 11a). Accordingly, the Eighth Circuit upheld the District Court s denial of post-judgment leave to amend. Importantly, the undue delay analysis applied by the Eighth Circuit in its opinion affirming the District Court s orders is the standard articulated by this Court for judging whether a party should properly be granted leave to amend under Rule 15(a). See Foman, 371 U.S. at 182 (noting undue delay as reason to deny leave to amend under Rule 15(a)). Petitioners Ash and Jewsome now petition the Court to grant certiorari.

20 11 REASONS FOR DENYING THE PETITION I. THE CIRCUIT COURTS ARE NOT DIVIDED OVER THE STANDARD APPLICABLE TO POST- JUDGMENT REQUESTS FOR LEAVE TO AMEND. Petitioners contend that certiorari is appropriate because a deep split exists among and within the circuit courts, and completely different standards are used to determine when a district court s discretionary denial of a post-judgment request to amend a complaint is abusive. (Pet.9-10). In reality, there are no such conflicts, and the Circuits consider the same Rule 15 and Rule 59 and 60 factors when reviewing the decisions of lower courts in light of the unique facts and circumstances of each case. A. The Eighth Circuit s Decision Is Correct, Consistent with This Court s Guidance in Foman, and Consistent with Rules 15, 59 and 60. Rule 15 declares that [t]he court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). In furtherance of the interest in allowing claims to be tested on their merits, Foman instructs that lower courts should heed the policy considerations of Rule 15 even in the post-judgment context. See 371 U.S. at 182. Foman does not, however, mandate that all post-judgment requests for leave to amend be freely given, as Petitioners argue. (Pet.1). Nor does Foman instruct lower courts to disregard the interests in finality of judgments

21 12 embodied by Rules 59 and 60 when a movant requests leave to amend after a final judgment has been entered. Rather, Foman acknowledges the reality that the grant or denial of an opportunity to amend is within the discretion of the District Court, but cautions that the outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion U.S. at 182. In other words, Foman does not announce a standard for granting leave to amend post-judgment, as Ash and Jewsome repeatedly assert in their petition. Instead, Foman states that denying leave to amend requires, at a minimum, any justifying reason to be considered a valid exercise of discretion. Importantly, in Foman, the Court recognized a number of justifying reasons why leave to amend could be denied consistent with Rule 15(a)(2). Id. Those reasons included undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. Id. Further, as the federal courts have widely recognized, after judgment has been entered against a plaintiff, there is an additional and different consideration in the finality of judgments that must be taken into account when considering whether leave to amend should be granted at such a late stage (in addition to traditional factors such as the existence of undue delay ). See, e.g., Williams v. Citigroup, Inc., 659 F.3d 208, 2013 (2d Cir. 2011) ( Where, however, a party does not seek leave to file

22 13 an amended complaint until after judgment is entered, Rule 15 s liberality must be tempered by considerations of finality. ). The interest in finality of judgments is embodied and recognized in Rules 59 and 60 of the Federal Rules of Civil Procedure. See MOORE S FEDERAL PRACTICE Civil ( Rule 59 is silent with respect to the grounds for such a motion.... However, this discretion is not limitless: the reconsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources. ) and ( The extraordinary circumstances requirement exists in order to balance the broad language of Rule 60(b)(6) with the interest in the finality of judgments. ) (internal citations omitted). Every single circuit court has recognized the importance of paying due consideration to the principle of finality of judgments embodied in Rules 59 and 60 when considering post-judgment requests to amend a complaint or set aside judgment. See Williams, 659 F.3d at 213 ( [P]ost judgment motions for leave to replead must be evaluated with due regard to both the value of finality and the policies embodies by Rule 15. ); Ahmed v. Dragovich, 297 F.3d 201, 208 (3d Cir. 2002) (Rule 15(a) should not... be employed in a way that is contrary to the philosophy favoring finality of judgments... ) (citations omitted); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) ( To give Rule 60(b)(6) broad application would undermine numerous other rules that favor the finality of judgments, such as Rule ); S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993) (noting that a motion to vacate, alter, or amend a judgment so as to

23 14 permit the filing of an amended pleading draws the interest in finality of judgments into tension with the federal policy of allowing liberal amendments under the rules ); Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, (6th Cir. 2010) (stating that when a Rule 15 motion comes after judgment against the plaintiff,... [c]ourts in that setting must consider the competing interest of protecting the finality of judgments and the expeditious termination of litigation ); Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 521 (7th Cir. 2015) (noting importance of finality of judgments and stating that Rules 59(e) and 60(b) provide extraordinary remedies reserved for the exceptional case); Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1010 (8th Cir. 2015) ( When a party moves to amend a complaint after dismissal, a more restrictive standard reflecting interests of finality applies. ); Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996), as amended (Sept. 4, 1996) ( [C]onsistent with our policy of promoting the finality of judgments[,]... once judgment has been entered in a case, a motion to amend the complaint can only be entertained if the judgment is first reopened under a motion brought under Rule 59 or 60. ); The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005) ( To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation. ) (citations omitted); Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990) ( After a judgment has been entered, the interest in finality

24 15 may be deemed compelling. ) (citation omitted); Bldg. Indus. Ass n of Superior California v. Norton, 247 F.3d 1241, 1245 (D.C. Cir. 2001) (noting that requiring a Rule 59 or 60 motion prior to postjudgment amendment is employed to serve the judicial policy favoring finality of judgments and the expeditious termination of litigation ). As Justice Breyer recognized when writing for the First Circuit in James v. Watt, 716 F.2d 71 (1st Cir. 1983) (Breyer, J.), upholding denial of a post-judgment request for leave to amend where the plaintiffs waited until after judgment had been entered against them before seeking leave to amend their complaint: To require the district court to permit amendment here would allow plaintiffs to pursue a case to judgment and then, if they lose, to reopen the case by amending their complaint to take account of the court s decision. Such a practice would dramatically undermine the ordinary rules governing the finality of judicial decisions, and should not be sanctioned in the absence of compelling circumstances. Id. at 78. However, consideration of the interest in finality of judgments in the post-judgment context does not indicate that the amendment standard under Rule 15(a)(2) is inapplicable or ceases to apply. Rather, the standards may be considered together and collectively when examining if a justifying reason (as described in Foman) or compelling circumstances (as described by Justice Breyer in James) exist to allow post-judgment leave to amend. Careful

25 16 examination of the opinions of the Circuit Courts reveals no deep split in recognizing this commonsense proposition. A prime example of this is the Eighth Circuit s opinion in this case. Here the District Court and the Eighth Circuit considered Rule 15(a)(2) s freely given standard alongside Rule 59 and 60 considerations concerning the finality of judgments when evaluating a post-judgment leave to amend. See (Pet.App.7a) (noting that [a]lthough a district court may not ignore the [Federal Rule of Civil Procedure] 15(a)(2) considerations that favor affording parties an opportunity to test their claims on the merits, it has considerable discretion to deny a post judgment motion for leave to amend because such motions are disfavored. ) (quoting U.S. ex rel. Roop v. Hypoguard U.S.A., Inc., 559 F.3d 818, 824 (8th Cir. 2009); see also (Pet.App.20a) (noting express consideration of Rule of Civil Procedure 15(a)(2), 59(e), and 60(b) when deciding Petitioners motion to vacate and set aside judgment). 3 Consistent with Rule 15(a)(2) standards requiring evaluation of whether there has been undue delay in seeking amendment, and also recognizing the 3 Petitioners inaccurately attempt to cast the Eighth Circuit s analysis of post-judgment requests for leave to amend in this and other cases as a heightened disfavored motion standard. (Pet.8). In reality, the Eighth Circuit has simply noted that prejudgment requests for amendment are favored over postjudgment requests because the former does not disturb a judgment. As discussed herein, there is nothing wrong with expressing a preference for pre-judgment motions that do not disturb judgments.

26 17 importance of finality of judgments embodied in Rules 59 and 60, if a case progresses to the point where judgment has been entered some explanation must be offered by the plaintiff as to why the judgment should now be set aside and a new complaint allowed. If no such explanation is offered, and if the facts or legal theory were in the plaintiff s possession and could have been asserted earlier, this constitutes undue delay and setting aside a judgment to allow for an amended complaint is not warranted. See, e.g., Mayfield v. Nat l Ass n for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012) (affirming denial of Rule 59 motion to reconsider and motion to amend where plaintiffs provided no excuse for failing to include these additional allegations... in the original complaint ); Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000) (noting that the Fifth Circuit has consistently upheld the denial of leave to amend where the party seeking to amend has not clearly established that he could not reasonably have raised the new matter prior to the trial court s merits ruling ); FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986) (denying post-judgment Rule 59 motion to amend complaint and holding [t]hese motions cannot be used to raise arguments which could, and should, have been made before the judgment issued ) (internal citations omitted). As the Sixth Circuit noted in Leisure Caviar : In post-judgment motions to amend... the Rule 15 and Rule 59 inquiries turn on the same factors. A court acts within its discretion in denying a Rule 15 and a Rule 59 motion on account of undue delay

27 18 including delay resulting from a failure to incorporate previously available evidence and ought to pay particular attention to the movant s explanation for failing to seek leave to amend prior to the entry of judgment. 616 F.3d at 616 (internal citations and quotations omitted). Similarly, as the Seventh Circuit recognized in Figgie Int l, Inc. v. Miller, 966 F.2d 1178 (7th Cir. 1992), whether Rule 15(a) s freely given standard is applied alone or whether a more stringent standard considering Rules 59 and 60 is applied, if a party offers no valid explanation for the delay in asserting facts known to it before judgment is entered, then leave to amend should not be granted: In a post-judgment situation, delay without explanation is sufficient reason to deny a motion to amend. Figgie argues that because the motion for leave to amend was filed a little over three months after the original complaint, this does not constitute undue delay. However, Figgie has not provided an adequate explanation for failing to ask for leave to amend before judgment was entered. Both the Arthur Andersen memorandum and Mueller s alleged testimony, which formed the basis of the amended complaint, were available to Figgie well before summary judgment was granted June 6, Therefore, Figgie s lack of diligence in bringing the claim prejudgment constitutes undue delay....

28 19 Figgie s undue delay and bad faith in bringing the motion to amend after judgment had been entered provide ample reason to deny the Rule 59(e) motion under Rule 15(a) standards. Id. at (internal citations omitted). In this case, as the Eighth Circuit plainly recognized, Petitioners failed to offer any explanation for the delay in pleading facts clearly known to them at the time the original Complaint was filed or the delay in seeking leave to amend after their Complaint was dismissed and before judgment in Respondents favor was entered. The Court of Appeals first noted that: Ash and Jewsome fail to address the factual basis of the district court s decision. Ash and Jewsome did not seek leave to amend their complaint until nine days after the district court granted the motion to dismiss and two days after judgment was entered. The defendants motion to dismiss, filed 47 days before the district court dismissed the case, put Ash and Jewsome on notice of the possible deficiencies in their original complaint. (Pet.App.10a). The Court of Appeals then expressly noted that, [a]sserting simply that their claim should be tested on the merits, Ash and Jewsome offer nothing to explain why their litigation decisions did not amount to undue delay, or why the resulting

29 20 delay was otherwise excusable. 4 (Pet.App.11a). As in Leisure Caviar and Figgie Int l, this is the classic case where under either Rule 15(a) s undue delay standard or Rule 59 s and 60 s compelling circumstances or extraordinary circumstances standard, leave to amend was not warranted and refusal to grant such leave is not an abuse of discretion because no valid explanation for delay in asserting facts plainly known to the Petitioners has been (or could be) offered. 4 In their Petition, Petitioners take issue with the time counsel for a plaintiff may have to devote to redrafting a complaint, conducting additional legal research and undertak[ing] additional investigation necessary to plead in more detail.... (Pet.19). Requiring further diligence to address deficiencies identified in an original pleading is not antithetical to the Rules. Further, in this case Petitioners and their counsel actually held back facts they already knew from their original Complaint no further diligence was required to assert them. Petitioners also contend that requiring plaintiffs to concurrently seek leave to amend while defending a motion to dismiss amounts to requir[ing] plaintiffs to plead to a higher standard than Rule 8 requires. (Pet.19-20). This contention is not true. Petitioners position was aptly rejected by the Eighth Circuit, which held that [t]he court is unpersuaded by Ash and Jewsome s argument that it is somehow self-defeating to favor seeking leave to correct deficiencies in a complaint while simultaneously defending against a motion to dismiss that complaint.... [T]he decision whether to request leave to amend or stand on the complaint is an ordinary tactical decision that is commonly required of litigants. Such decisions are not always easy to make, but we see no reason to conclude that this relatively common circumstance is somehow fundamentally unfair to plaintiffs. (Pet.App.10a-11a.n.3).

30 21 B. The Second, Fourth, Fifth, Seventh and Eleventh Circuits Do Not Ignore Rule 59 and 60 Considerations When Evaluating a Post- Judgment Request to Amend Avoiding the fact that, under any applicable standard, Petitioners were not entitled to postjudgment leave to amend their Complaint, Petitioners attempt to secure certiorari review of their case by bootstrapping it to a contention that there is a deep split among the circuit courts regarding the standard to be used to determine when a district court s discretionary denial of a postjudgment request to amend a complaint is abusive. (Pet.9-10). In support of their argument that a conflict exists among the Circuits, Petitioners contend that, unlike the Eighth Circuit, the Second, Fourth, Fifth, Seventh and Eleventh Circuits take the opposing view that the Rule 15 standard continues to govern a motion to amend a complaint when it is incorporated into a motion to reconsider [after judgment has been entered]. (Pet.10). According to Petitioners, in these circuits, regardless of whether leave to amend is sought pre- or postjudgment, the entry of judgment is of no consequence at all. Instead, the only consideration is the text of Rule 15 and its policy of freely given amendments. That assertion is demonstrably untrue. As an initial matter, as explained above, the Eighth Circuit does not disavow Rule 15 considerations when evaluating a post-judgment leave to amend. Rather, the Eighth Circuit considers Rule 15(a)(2) s freely given when justice so requires standard, including the analysis of whether there has

31 22 been undue delay in seeking amendment, in the context of Rule 59 and 60 considerations supporting the finality of judgments. See, U.S. ex rel Roop v. Hypoguard U.S.A., Inc., 559 F.3d 818, 824 ( [D]istrict courts in this circuit have considerable discretion to deny a post judgment motion for leave to amend because such motions are disfavored, but may not ignore the Rule 15(a)(2) considerations that favor affording parties an opportunity to test their claims on the merits. ). Further, the Second, Fourth, Fifth, Seventh and Eleventh Circuits similarly consider Rule 15 standards alongside Rule 59 and 60 considerations at the post-judgment stage. In Fannon v. Guidant Corp., 583 F.3d 995 (7th Cir. 2009), the Seventh Circuit considered whether the district court abused its discretion when denying the plaintiffs Rule 59 motion for reconsideration of judgment dismissing their complaint. Id. at In finding no abuse of discretion, the Fannon Court stated that the district court was entitled to consider that the plaintiffs had apparently made a strategic decision not to put their new evidence into the record before the court ruled on [the defendant s] motion to dismiss. Id. at Addressing the plaintiffs argument that the district court should have evaluated their motion to reopen and allowed the filing of their proposed amended complaint under Rule 15, the Seventh Circuit stated the following: The entry of a final judgment under Rule 58 is a watershed point in any litigation. Rule 15(a) is silent about any period after final judgment. But there are two rules of civil

32 23 procedure that expressly address this phase of the suit: Rule 59 and Rule 60. Those rules logically affect all the rest of the rules directed to proceedings in the district courts. The district court correctly assessed whether the plaintiffs were entitled under the standards of Rule 59(e) to have the judgment altered or amended. As we said in Hecker, [o]nce judgment has been entered, there is a presumption that the case is finished, and the burden is on the party who wants to upset that judgment to show the court that there is good reason to set it aside. The plaintiffs here did not meet that burden. Id. at 1004 (quoting Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009)) (citation omitted). Accordingly, the Seventh Circuit expressly recognizes that Rule 59 and Rule 60 considerations are appropriately accounted for in evaluating a request for post-judgment leave to amend. Fannon is not in any way inconsistent with Runnion, the Seventh Circuit case on which Petitioners rely in their petition. See (Pet.11-12). Runnion is unique in that the district court took the unusual step of terminating the case at the same time it dismissed the plaintiff s complaint. 786 F.3d at 521. Critically, and distinguishable from both Fannon and the Eighth Circuit s opinion below, the Seventh Circuit held that [w]hen the district court has taken the unusual step of entering judgment at the same time it dismisses the complaint, the court need not find other extraordinary circumstances and

33 24 must still apply the liberal standard for amending pleadings under Rule 15(a)(2). Id. at 521 (emphasis added). In other words, the Seventh Circuit held that under the facts in Runnion, simultaneous dismissal of the complaint and entry of judgment constituted valid extraordinary circumstances under Rules 59 and 60 warranting setting aside the judgment and considering whether an amended complaint should be allowed under Rule 15(a)(2) s freely given when justice so requires standard. The Runnion case did not overrule Fannon, nor did it reject the notion that Rule 59 and 60 considerations can and should be considered alongside Rule 15 considerations when evaluating a post-judgment request for leave to amend. Moreover, there is no question that Runnion is inapposite to the instant case. Here, judgment was not entered simultaneously with the order dismissing the case. Rather, judgment was entered a full week after Respondents Motion to Dismiss was granted, and during the seven-day period between the order of dismissal and entry of judgment, Petitioners took no steps to seek amendment of their Complaint to plead facts they admittedly knew even before their original Complaint was filed a delay which the Eighth Circuit correctly noted remains unexplained. (Pet.App.10a). Thus, even under the Seventh Circuit s decision in Runnion, Petitioners cannot show they were entitled to a post-judgment amendment under Rule 15 or that denying such leave was an abuse of discretion. Petitioners also wrongly submit that the Second, Fourth, Fifth and Eleventh Circuits would have

34 25 applied only Rule 15 standards in the case below and ignored Rule 59 and 60 considerations. (See Pet.12) In Williams, the Second Circuit case cited by Petitioners, the court unequivocally stated that [w]here, however, a party does not seek leave to file an amended complaint until after judgment is entered, Rule 15 s liberality must be tempered by considerations of finality. 659 F.3d at 213. Likewise, in Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006), the Fourth Circuit recognized that the district court may not grant the post-judgment motion unless judgment is vacated pursuant to Rule 59(e) or Fed. R. Civ. P. 60(b). Id. at 427; see also Mayfield, 674 F.3d at 379 (affirming denial of Rule 59 motion to reconsider and motion to amend where plaintiffs provided no excuse for failing to include these additional allegations... in the original complaint ). Accordingly, it is clear that the Second and Fourth circuits also consider both Rule 15 and Rule 59 and 60 considerations when evaluating a post-judgment request for leave to amend. In U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354 (5th Cir. 2014), the Fifth Circuit did state that following a dismissal with prejudice, the considerations for the Rule 59(e) motion are governed by Federal Rule of Civil Procedure 15(a). Id. at 367. However, nothing about the Westbrook opinion rejects consideration of Rule 59 and 60 principles or holds that those rules have no applicability in considering a post-judgment leave to amend. To the contrary, the Westbrook opinion only states that the considerations for the Rule 59(e) motion must include Rule 15(a) s freely given when justice so requires standard. As demonstrated above,

35 26 simultaneous consideration of Rule 15 and Rule 59 standards when evaluating a post-judgment request for leave to amend is the same position taken by the Second, Fourth, Seventh and Eighth Circuits. (See Pet.9, 17) Further, the Fifth Circuit has also consistently upheld the denial of leave to amend where the party seeking to amend has not clearly established that he could not reasonably have raised the new matter prior to the trial court s merits ruling. Vielma, 218 F.3d at 468. Thus, whether by lack of diligence or deliberate delay, a party s strategic decision to risk dismissal, with the expectation that they would be granted leave to amend, is sufficient grounds on which to deny a post-judgment motion to amend. Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003). Accordingly, when viewed collectively, the Fifth Circuit s rulings clearly establish that postjudgment requests for leave to amend pose different considerations than pre-judgment requests. Further, those same decisions recognize the interest in finality of judgments embodied in Rules 59 and 60 and that such judgments are not to be disturbed where facts and legal theories could have been asserted in earlier pleadings but were held back in a strategic decision to risk dismissal as is exactly the case here. As for the Eleventh Circuit, Petitioners cite Thomas v. Town of Davie, 847 F.2d 771 (11th Cir. 1988), for the proposition that Rule 15 standards apply in the Eleventh Circuit when a plaintiff seeks to amend after a judgment has been entered. (See Pet.12). This is a misreading of the full body of Eleventh Circuit precedent. The Eleventh Circuit has

36 27 plainly recognized that Rule 59 considerations are entirely relevant in the context of a post-judgment motion to amend. See Jacobs v. Tempur-Pedic Int l, Inc., 626 F.3d 1327 (11th Cir. 2010). In Jacobs, the plaintiff asserted that the district court abused its discretion under Rule 15 by refusing to allow a postjudgment amendment. Id. at In affirming the district court s denial of post-judgment leave to amend, the Eleventh Circuit held that Rule 15(a), by its plain language, governs amendment of pleadings before judgment is entered; it has no application after judgment is entered. Id. (emphasis in original). Instead, according to the Jacobs Court, in the postjudgment context, the plaintiff may seek leave if he is granted relief under Rule 59(e) or Rule 60(b). Id. (citations omitted). Thus, there is simply no basis to suggest that the Second, Fourth, Fifth, Seventh and Eleventh Circuits all agree that plaintiffs are entitled to Rule 15 s liberal amendment policy both before and after judgment has been entered and without consideration for the standards embodied in Rules 59 and 60. Instead, consistent with Foman, these Circuits review the exercise of discretion with due consideration to the different interests of Rule 15 and Rules 59 and 60, examining whether there was a justifiable reason on which to deny leave to amend.

37 28 C. The Cited Decisions from the First, Sixth and Ninth Circuits are Consistent with Foman and Decisions from the Other Circuits. Petitioners continue their unsupported argument that a conflict exists among the circuits by asserting that the decisions from the First, Sixth and Ninth Circuits hold that Rule 15 s mandate that leave to amend be freely give[n] no longer applies in the post-judgment context. (Pet.12 13). While the cited decisions from these circuits acknowledge the valid interests in finality of judgments once judgment has been entered, they do not reject the applicability of Rule 15(a) considerations in the post-judgment context. In fact, all of the circuit decisions cited by Petitioners that uphold the denial of post-judgment leave to amend do so for justifiable reasons, which is what Foman holds is required under Rule 15. Petitioners first cite In re Genzyme Corp. Securities Litigation, 754 F.3d 31 (1st Cir. 2014), a First Circuit case in which the plaintiffs alleged that the defendants violated the Securities Exchange Act by making false statements to investors. Id. at 40. The defendants moved to dismiss the plaintiffs complaint pursuant to Rule 12(b)(6), and the district court granted the motion after concluding that the complaint did not plausibly allege facts showing scienter. Id. The plaintiffs then moved for relief from judgment and sought leave to amend their complaint to include additional allegations, but the district court denied both motions, finding that any new evidence plaintiffs wished to present could have been presented earlier. Id. On appeal, the First Circuit affirmed, noting that the order of dismissal came

38 29 over two years after the complaint had been filed and plaintiffs admit[ted] that most of this purportedly new evidence was available to them well before the order of dismissal. Id. at Given the justifiable reason provided for denying the plaintiffs leave to amend undue delay and holding back evidence prior to dismissal Petitioners contention that In re Genzyme Corp. Securities Litigation is somehow inconsistent with Foman and Rule 15 is incorrect. Petitioners next cite Clark v. United States, 764 F.3d 653 (6th Cir. 2014), a Sixth Circuit case explaining that in post judgment motions to amend, the Rule 15 and Rule 59 inquiries turn on the same factors. Id. at 661 (citations and quotations omitted). Thus, the Sixth Circuit (like the First, Second, Fourth, Fifth, Seventh, Eighth and Eleventh Circuits) explicitly recognizes the interplay between Rules 15 and 59 and the different policy interests to be considered under each rule, including allowing leave to be freely given when justice so requires so that cases are decided on their merits and also not unnecessarily disturbing the finality of a judgment. See also Leisure Caviar, 616 F.3d at 616 ( In postjudgment motions to amend... the Rule 15 and Rule 59 inquiries turn on the same factors. ) (internal citations and quotations omitted). This approach complies with Foman s requirement that denial of post-judgment leave to amend be supported by any justifying reason. Petitioners next cite Weeks v. Bayer, 246 F.3d 1231 (9th Cir. 2001), a Ninth Circuit case in which the plaintiff never sought to amend during the seven months while the defendant s motion to dismiss was